“The test for whether there has been a material change in the circumstances of the child was described as follows in Goertz, at paras 10-13:
10 Before the court can consider the merits of the application for variation, it must be satisfied there has been a material change in the circumstances of the child since the last custody order was made. Section 17(5) provides that the court shall not vary a custody or access order absent a change in the “condition, means, needs or other circumstances of the child”. Accordingly, if the applicant is unable to show the existence of a material change, the inquiry can go no farther: Wilson v. Grassick (1994), 1994 CanLII 4709 (SK CA), 2 R.F.L. (4th) 291 (Sask. C.A.).
11 The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued: Baynes v. Baynes (1987), 1987 CanLII 2918 (BC CA), 8 R.F.L. (3d) 139 (B.C. C.A); Docherty v. Beckett (1989), 1989 CanLII 8869 (ON CA), 21 R.F.L. (3d) 92 (Ont. C.A.); Wesson v. Wesson (1973), 1973 CanLII 1951 (NS SC), 10 R.F.L. 193 (N.S. T.D.), at p. 194.
12 What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 1991 CanLII 839 (BC SC), 35 R.F.L. (3d) 169 (B.C. S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I. S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. “What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place”: J.G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.
13 It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
Further, a variation of a final parenting order cannot be made on consent unless there is a finding of a material change in circumstances. In Persaud v. Garcia-Persaud, 2009 ONCA 782, the Ontario Court of Appeal stated:
[3] To begin with, the motion judge was without jurisdiction to make the order in question. As this court has made clear, jurisdiction to vary a custody and access order is dependent on an explicit finding of a material change in circumstances since the previous order was made. If an applicant fails to meet this threshold requirement, the inquiry can go no further: see Litman v. Sherman (2008), 2008 ONCA 485 (CanLII), 52 R.F.L. (6th) 239 (Ont. C.A.). The matter is jurisdictional and a court must make a finding of a material change in circumstances even when, as here, both parties request a variation. In the present case, no such finding was made. Thus, as has been stated, the motion judge was without jurisdiction to vary the original order.
[4] A material change in circumstances is one which: (1) amounts to a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) materially affects the child; and, (3) was either not foreseen or could not have been reasonably contemplated by the judge making the original order: see Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 13. None of these factors are addressed in the brief reasons of the motion judge nor can they be found on a broader reading of the record as a whole, including the exchanges that the motion judge had with counsel. Indeed, it is highly questionable whether the third factor could have been made out, given the motion judge’s numerous statements to the effect that the issues and differences between the parties were but a rehash of that which he heard at the time he made the initial custody and access order.
[5] Moreover, on this record, it is not clear how these factors could have been determined, given the significant conflict in the affidavit evidence of the parties. In such circumstances, a variation motion cannot be properly determined on affidavit material. As this court has stated, resolution of conflicting evidence on critical matters requires a trial of the issues, in which viva voce evidence is called. See this court’s decision in Schnarr v. Schnarr (2006), 2006 CanLII 190 (ON CA), 22 R.F.L. (6th) 52.
A change in circumstances is “material” if it is significant and long lasting: Roloson v. Clyde, 2017 ONSC 3642, paras. 49-51.”