“It is best to go back to basics. The Children’s Law Reform Act (the CLRA) requires that a material change in circumstances be demonstrated to the satisfaction of the court before the court can vary an access order.
CLRA S.29 A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29.
However, the access order that is sought to be varied, and the motion of the father are not under the CLRA, but rather under the Child, Youth and Family Services Act (the CYFSA). There is no statutory provision that expressly permits the importing of a CLRA requirement into the CYFSA in the area of “access”.
The status review application of the society is brought under s.113 of the CYFSA. This section of the CYFSA permits the society to apply to review the status of a child like A., at any time. As to what happens to the child when the society elects to do so, this is governed by s.113(8) CYFSA.
CYFSA S 113(8) If an application is made under this section, the child shall remain in the care and custody of the person or society having charge of the child until the application is disposed of, unless the court is satisfied that the child’s best interests require a change in the child’s care and custody
This subsection say nothing about any access order. And there is no provision in the following section of the CYFSA that deal with access to a child. However, there is a section of the CYFSA that deals specifically with access to, or by, a child. That is s.104 CYFSA.
CYFSA S. 104 (1) The court may, in the child’s best interests,
(a) when making an order under this Part; or
(b) upon an application under subsection (2),
make, vary or terminate an order respecting a person’s access to the child or the child’s access to a person, and may impose such terms and conditions on the order as the court considers appropriate.
Any claim for an order for access, or for variation of access, in a child protection proceeding or a status review proceeding has necessarily to be brought under s.104 CYFSA.
This subsection, and the following subsections in s.104 CYFSA say nothing about any requirement that a motion applicant seeking to vary an access order must demonstrate any material change in circumstances. In fact, the only criterion that is apparent from s.104, whether the court is making, varying or terminating an access order, is that the order that the court makes is one that is in the best interests of the child.
Notwithstanding this plain reading, some jurists have imported the “material change” pre-requisite into access hearings under the CYFSA. Their reasoning seems logical, even if not in accordance with the statute, when the claim is one for variation. This thinking can be summarized as follows:
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- The existing order is one that was made in the best interests of the child based circumstances that the evidence showed existed when it was made.
- There is (somewhat more than) a presumption that it remains an access order that is still in the best interests of the child.
- To change that order, the person seeking the change must show that the circumstances have changed from when the order was made, and have changed sufficiently (i.e. a material change) to warrant the court varying the previous order.
- The change in access, if made, must still be a change that is in the best interests of the child.
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There are any number of court decisions that have imported this material change requirement in dealing with variation of access claims. There are others that have not, and have stated that a material change in circumstances is not a pre-requisite for variation of access. A good review of this still controversial area of the law is found in the decision of Justice Sherr in Catholic Children’s Aid Society of Toronto v. R.M. [2017] O.J. No. 6004, 2017 ONCJ 784, at paragraphs [41] to [52], but ultimately he concludes at paragraph [80]
“ …. if the level of access is in dispute, the court should be receptive to access change motions. The goal should be to gradually increase a parent’s access. Material change or compelling evidence that is necessary for the child to make the change should generally not be required. The Act is remedial legislation. It would be contrary to the purpose of the Act to construct a legal test to change access that is too onerous for parents to meet, discourages them from moving to court to increase their access with the child and sets up more families to fail.”
This decision has not been appealed. Justice Sherr sets out what he views as the legal test for access variation when a child protection case is adjourned [at paragraph 85]
“a) The moving party has the onus of establishing that a sufficient change in circumstances has taken place since the making of the last court order. Whether the change is sufficient to change the order will depend on the circumstances of the case.
b) The court should conduct a contextual analysis when exercising its discretion as to whether it is in a child’s best interests to change the access order, and if so, what terms and conditions are appropriate. The purposes in section 1 of the Act should always be at the forefront of the analysis. The suggested non-exhaustive list of factors set out in para-graph 83 above should be considered, where relevant.”
I am in the camp of those jurists who do not hold that a material change in circumstances is a pre-requisite for variation of an existing access order in child protection cases. However, I do believe that the motion applicant has to show that some “significant” change has taken place and further, that the variation order sought is in the child’s best interests at the time of the variation hearing.”
Children’s Aid Society of Algoma v. K.S., 2019 ONCJ 716 (CanLII) at 10-19