“There is some dispute in the case law as to whether the material change in circumstances test applies with equal force to a temporary, as opposed to a final, order. In Miranda, at paras. 26-28, Radojevic v. Radojevic, 2020 ONSC 5868, at paras. 16-18 and Sullivan v. Boucher, 2020 ONSC 8062, at para. 21, the Courts concluded that the material change in circumstances test applies regardless of whether the order is a temporary or final order.
In contrast, Henderson J. has held that it is open to the Court to consider a motion to change a temporary order if there is a “compelling reason”, regardless of whether there is a material change in circumstances: Calabrese v. Calabrese, 2016 ONSC 3077 at para. 27; M.D. v N.J., 2016 ONSC 6058, at paras. 21-23.
That said, Henderson J. made clear that courts must proceed cautiously before changing even a temporary parenting order: see Calabrese, at para. 28:
In consideration of that principle, many courts have recognized that it is not in the best interests of the child for a court to tweak or tinker with a custody/access/parenting order on an interlocutory basis, given that all of the issues between the parties will not be fully vetted until trial. Therefore, changes to temporary custody/access/parenting orders will be rare.
See also M.D. v. N.J., at para. 24:
However, there is a significant body of law that suggests that it is not in a child’s best interests, in most cases, to change an existing temporary parenting order prior to trial. By necessity, any change prior to trial must be founded on affidavit evidence only. A full vetting of the evidence will not be possible until the trial, at which time the trial judge will have the benefit of oral evidence from, and cross-examination of, all witnesses. Temporary changes to temporary orders that will again be changed after a full trial cannot, in most cases, be in the best interests of a child.
See also the cases cited by Henderson J. at para. 25.
I agree with Kurz J. in paras. 16 and 17 of Radojevic that there may not really be a significant difference between the two approaches. Subject to the two exceptions outlined below, I would follow the material change of circumstances approach because it is consistent with the express language of s. 29 of the Children’s Law Reform Act.”