“Section 29(1) of the Children’s Law Reform Act (CLRA) provides:
A court shall not make an order under this Part that varies a parenting order or contact 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 the subject of the order.
This section prohibits 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. Section 29 applies not only to final Orders made under the Children’s Law Reform Act, but also to temporary Orders (See: BRM v MAEM, 2021 ONSC 2791 at para 39).
If the Court finds that a material change has occurred:
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- The Court should consider the matter afresh, without defaulting to the existing arrangement;
- The Court must consider all factors relevant to the children’s circumstances, in light of the new circumstances;
- The Court must be guided by the statutory criteria set out in section 24 of the CLRA;
- Both parties bear the evidentiary burden of demonstrating where the best interests of the children lie; and
- The Court should limit itself to whatever variation is justified by the material change in circumstance.
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(See: BRM v MAEM, 2021 ONSC 2791 at paras 41-42)
A breach of supervision terms of an access order by a parent and grandparents can constitute a material change. In LW-A v. JC 2017 ONCJ 741 the Honourable Justice Sherr held that because the grandparents breached the supervision terms of the access order by failing to supervise the father’s visits with the child, they were not reliable and trustworthy. The Court held that “the child’s safety requires that his access with the father be fully supervised by an independent third party” (at paras 114-118).
As per section 24 of the CLRA, the court is required to consider only what is in the best interests of the child in making a parenting order or a contact order. In determining the best interests of a child, I am to consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being including those factors set out in section 25(3) of the CLRA.
Pursuant to section 34 of the CLRA, the court may give such directions as it considers appropriate for the supervision, by a person, a Children’s Aid Society or other body, of decision-making responsibility, parenting time or contact with respect to a child under a parenting order or contact order. The person, society or body must consent to provide supervision.
Supervision orders may be beneficial in attempting to protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and, avoid or reduce the conflict between parents and thus, the impact upon children (See: VSJ v LJG, 2004 CanLII 17126 (ON SC), [2004] OJ No 2238).
In BRM v MAEM 2021 ONSC 2791, Finlayson J. noted that the case law, in which supervised parenting time has been ordered, invariably includes a multitude of troubling features that are present. Those features may include harassing and harmful behaviours towards the other parent or the child, a history of violence, uncontrollable behaviour, substance misuse, other behaviour that presents a risk to the child, alienation, ongoing severe denigration of the other parent, a lack of a relationship between the parent having parenting time and the child, negligence or abuse, and sometimes when the child’s views and preferences are in favour of supervision.”