“In F.K. v. A.K. 2020 ONSC 3726 this court recently set out an extensive analysis of the relevant factors and considerations when a parent seeks to change a custody and/or access order.
a. The starting point is that the original order is presumed to be appropriate and in the best interests of the child.
b. In a variation proceeding, the threshold test is whether there has been a material change in circumstances since the previous order was made.
c. If there is no material change in circumstances, the inquiry goes no further.
d. If a material change in circumstances has been established, the court will embark upon a determination of the child’s best interests. This must be a broad and careful inquiry which takes into account all of the relevant circumstances pertaining to the child’s needs and the ability of each parent to meet those needs.
e. Even if there has been a change in circumstances, the court must still decide whether it is appropriate to change the existing order, and if so, in what manner.
f. The court should have all relevant information before it makes any changes. As a result, courts are very reluctant to impose temporary changes with respect to final orders. In most circumstances the existing order should continue until the court has confidence that all necessary information has been assembled and considered. The safest course is to fully ascertain the immediate and longer-term impact of any change on the child – before implementing the change. A poorly considered or misguided change may actually prejudice the child. And further correction or reversal of a premature variation could only compound the harm to the child.
g. In extreme or urgent circumstances, the court may have no alternative but to consider a temporary variation to provide some immediate protection or benefit for the child which cannot or should not be delayed.
h. But the onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child. And they must clearly establish that the immediate benefit to the child is significant and necessary, and outweighs any foreseeable negative consequences or prejudice resulting from disruption of the child’s situation, relationships or routine.
i. Given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied — on a balance of probabilities — that a clear and compelling need to make an immediate change has been established.”