“Section 17(5) of the Divorce Act requires that the court be satisfied that there has been a change in the circumstances of the child since the last order, before varying a parenting order. Section 2 of the Divorce Act defines a parenting order as an order made under subsection 16.1(1) of the Act. However, the court’s jurisdiction to make interim parenting orders is found in subsection 16(2), thus it opens to question whether the material change test applies to the variation of an interim order.
Neither party made submissions on the legal test to be met. If a material change is required, it is not sufficient that both parents want the court to intervene, albeit for different reasons. The Court of Appeal in Persaud v. Garcia-Persaud, 2009 ONCA 782, said even when both parties request a variation, the court must still make an explicit finding that a material change in circumstances has occurred since the previous order was made. The jurisdiction to make a variation order is dependent on it.
The case law reflects two approaches to the variation of interim orders. See Calabrese v. Calabrese, 2016 ONSC 3077 (Ont. S.C.J.) where the court indicates the strict material change test is not a prerequisite to varying an interim parenting order and says the overriding principle is always the best interests of the child. However, Henderson J. goes on to say in Calabrese that many courts have recognized it is not in the best interests of the child to make interim changes pending a full vetting of the evidence at trial and concludes that changes to temporary orders will be rare. It is the second approach that I adopt. It requires a material change in circumstance that results in a compelling reason to vary the previous interim order. See Radojevic v. Radojevic, 2020 ONSC 5868, 2020 CarswellOnt 14013, 324 A.C.W.S. (3d) 233 where Kurz J. agrees with Justice Mitrow in Miranda v. Miranda, 2013 ONSC 4704 (Ont. S.C.J.), that the threshold is a material change in circumstances that compels a change in the parenting terms in the best interests of the child. Mitrow J. sets out the following summary in Miranda, at para. 26:
26 A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (Ont. S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. Q.B.) at para 10. In Green v. Cairns, 2004 CarswellOnt 2322 (Ont. S.C.J.) at para. 14, Wood J. referred to the well- founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes “clearly and unequivocally” that the present arrangement is not in a child’s best interests. In Greve v. Brighton, 2011 ONSC 4996 (CanLII), 2011 CarswellOnt 8814 (Ont. S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child’s best interests.
Neither party made submissions with respect to the material change test. It is not sufficient that they both ask the court to intervene and vary the interim order, albeit for different reasons. In Persaud, the Court of Appeal said even where both parties request a variation, the court must still make an explicit finding that there has been a material change in circumstances since the previous order was made. The jurisdiction to vary is dependent on it.”