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Strong evidence needed to change final family law orders

Family law litigants need to have everything in order before launching a motion to change a final order or risk a large cost award against them, Toronto family lawyer Lisa Gelman tells AdvocateDaily.com.

In a recent case, Ontario Superior Court Justice Alex Pazaratz rejected a self-represented father’s attempt to terminate a permanent restraining order against him and reinstate access to a seven-year-old son he hadn’t seen in six years.

Gelman, principal of Gelman & Associates, explains that the father, like any applicant seeking to change a final order in a family law matter, needed to show that there had been a “material change in circumstances” since the original ruling was made.

But the test is a tougher one to meet than many assume, she says.

“It can’t just be any change. Typically, it means something very significant, to the extent that it may have altered the course of the initial trial had the judge known about it,” Gelman says. “The lesson here is that if you’re bringing a court motion for change, you need to make sure the evidence is there to support your claim.

“If a lawyer is involved in the case, they will have to be very careful to assess the strength of that evidence. You want to make sure your ducks are in a row because, if you lose, nothing will have changed except the health of your bank account,” she says.

Although they may save on their own legal costs, Gelman warns that self-represented litigants cannot insulate themselves from financial consequences entirely since if they are unsuccessful, they will be responsible for the other side’s costs.

In a case like the recent one, which was heard over two days in court, Gelman says the father may be faced with a bill running into the tens of thousands of dollars for the costs of the successful mother who did have legal counsel.  

“It’s not just the cost of the time in court, but also of preparing responding materials, as well as the case and settlement conferences that would have led up to the hearing,” she says.

The father claimed that the situation had changed materially in the four years since the final order in his matter because of the efforts he had made to resolve his past personal issues. As a result, he argued it was no longer reasonable for the mother to fear him.  

However, Pazaratz ruled in favour of the mother and dismissed the father’s motion, despite accepting evidence that he had managed to avoid further criminal charges or convictions since 2012.

“That’s good, but it doesn’t constitute a ‘material change’ sufficient to vary the existing order,” the judge wrote, noting that the man had previous gaps of as much as seven years between convictions.

“On the threshold issue of whether [the father] has established a material change in circumstances (with respect to any aspect of his motion), I have no hesitation in concluding that he has not,” Pazaratz added, after finding that any steps he had taken to deal with his problems were not meaningful.

“When you look at the facts of this case, I think the judge reached the right decision,” Gelman says.

Still, she says many custody and access cases are suitable for alterations to a final order.

“When it comes to parenting orders, what works at one time may not necessarily work forever,” Gelman says.

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