“Where a party seeks to alter, or to replace any final term of an Order in its entirety, the requirements to bring a Motion to Change (or at least some form of an amended pleading), and to satisfy the material change threshold do not disappear, just because the December 20, 2018 Order was a consent Order, and just because one parent or the other now wants different wording. See McCall v. Res, 2013 ONCJ 254 ¶ 1-23 and see specifically ¶ 23.
There is nothing new in the amendments to the legislation that would allow otherwise. In fact, section 18(4) of the new Children’s Law Reform Act states that the amendments, which came into effect on March 1, 2021, do not, in themselves, constitute a material change in circumstances. Section 29 of the new legislation continues to prohibit a court from making a new order that varies a parenting order, unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is subject to the order. And section 29 applies not only to final Orders made under the Children’s Law Reform Act, but also to temporary ones.
Furthermore, to the extent that others of the parents’ claims would require the Court to change, prior to trial, a pre-existing temporary or final term in an Order, there are different legal questions that apply to those requests, too. That is not to say that the Court cannot intervene, in a child’s best interests in situation of urgency, even if the motion was procedurally improper. But as I will explain, I do not find it appropriate to do so in this case regarding almost all of the parties’ claims in their motions.
I begin with the material change test, required by section 29 of the Children’s Law Reform Act. Various, well-established principles govern a material change analysis. See Gordon v. Goertz,1996 CanLII 191 (SCC), 1996 CarswellSask 199 (S.C.C.); see L.M.P. v. L.S., 2001 SCC 64; and see also Van de Perre v. Edwards, 2001 SCC 60. In this case, I am mindful that the principles should be adapted somewhat because the previous Orders, now in issue, were consent Orders.
Regarding the material change threshold:
(a) the Court must be satisfied that there has been a change in circumstances since the making of the prior order;
(b) the change in circumstances must be material, meaning that if known at the time, would likely have resulted in different terms;
(c) the focus is on the prior order and the circumstances in which it was made;
(d) the change should represent a distinct departure from what the court (or the parties) could reasonably have anticipated in making the previous order; and
(e) the Court may examine the consent Order to see if it reveals whether the parties contemplated that a particular change might give rise to a later variation or not;
(f) the subsequent conduct of the parties may also provide an indication as to whether they considered a particular change to be material.
And if the Court finds that a material change has occurred:
(g) the Court should consider the matter afresh, without defaulting to the existing arrangement;
(h) the Court must consider all factors relevant to the children’s circumstances, in light of the new circumstances;
(i) the Court must be guided by the statutory criteria set out in section 24 the Children’s Law Reform Act;
(j) both parties bear the evidentiary burden of demonstrating where the best interests of the children lie; and
(k) the Court should limit itself to whatever variation is justified by the material change in circumstance.