“Temporary Orders establish or maintain a reasonable state of affairs pending Trial, when a full record will be available to the Court.
Courts are generally reluctant to change temporary Orders unless there are compelling circumstances for a change prior to Trial. This is particularly so with respect to parenting Orders given a broad consensus in the research that stable, “good enough” routines for children better meet their developmental needs for predictability and security than a serial schedule subject to the vicissitudes of the next litigation event.
At the same time, a Court is never powerless to act when a child is at risk, or when there are compelling reasons to do so in a child’s best interests.
When a compelling case for a change is established, the legal test(s) to be applied remains the same as was applied in the earlier motion. There is no requirement to show a material change in circumstances affecting the children, per Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, because the Application in which the change to a temporary Order is sought remains one of first instance.
I agree with Justice Mackinnon who stated at para. 23 of J.D. v. N.D., 2020 ONSC 7965, 50 R.F.L. (8th) 62, that in fact, there can be a good reason to lower the threshold for varying an interim parenting Order prior to Trial:
[23] In my view the law has evolved to the point where the approach of deferring parenting changes to trial in highly conflicted cases characterized by family violence and/or child parent contact issues should be re-examined, along with the related approach of routinely deferring implementation of family assessments to trial. A reconsidered process of active judicial case management and timely single judge decision making may provide children more hope for better outcomes and at the same time provide procedural fairness to their parents.”