“The cases of F.K. v. A.K., 2020 ONSC 3726 (CanLII), and S.H. v. D.K., 2022 ONSC 1203 (Ont. Div. Ct.) set out and clarified the legal threshold for when a final order can be varied on a temporary motion.
The starting point of any analysis is the decision of Pazaratz, J. in F.K. v. A.K., 2020 ONSC 3726 (CanLII). Starting at paragraph 48, Pazaratz, J. provides an excellent overview of the legal considerations:
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- Todetermine a request to change custody, access or parenting order, the court must embark upon a two-stage inquiry. Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (SCC).
- The first step: There must be a material changein circumstances since the last order was made.
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a. There must be a changein the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.
b. The changemust materially affect the child.
c. It must be a changewhich was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The change must be substantial, continuing and “if known at the time, would likely have resulted in a different order.” L.M.L.P. v. L.S. [2011] SCC 64.
d. The finding of a material changein circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order.
e. If there is no material changein circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485 (Ont. C.A.).
f. If there is a material change, the court must move tothe second stage and consider the best interests of the child and whether to vary the original order.
50. The second step:
a. If a material changein circumstances has been established the court, then embarks on a fresh inquiry into the best interests of the child.
b. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones, 2000 CanLII 22571 (ON SC); Persaud v. Garcia-Persaud2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.
c. The court must ascertain the child’s best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except tothe extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young 2003 CanLII 3320 (Ont. CA).
d. The child should have maximum contact with both parents if it is consistent with the child’s best interests. Gordon v. Goertz; Rigillio v Rigillio2019 ONCA 548 (Ont. CA).
e. Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining tothe child’s needs and the ability of each parent to meet those needs. Gordon v. Goertz.
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- The added complication: the father seeks a temporaryvariation of a finalparenting order. This requires that the court conduct an even more stringent analysis:
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a. In all instances, courts must exercise caution before changingan existing arrangement which children have become used to.
b. This is especially the case where the existing parenting arrangement has been determined by way of court order. The starting point is that court orders are presumed tobe correct. Montgomery v. Montgomery 1992 CanLII 8642 (ON CA); Gordon v. Gordon 2015 ONSC 4468 (SCJ); Oickle v. Beland 2012 ONCJ 778 (OCJ).
c. And the level of required caution is further heightened if the court is being asked tochange a final parenting order on a temporary basis. If the general rule is that we are reluctant to change temporary orders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue.
d. Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority togrant a temporary variation of a final order in the appropriate circumstances. Stokes v. Stokes 2014 ONSC 1311 (SCJ); Huliyappa v Menon 2012 ONSC 5668 (SCJ); Clements v Merriam 2012 ONCJ 700 (OCJ).
e. But the evidentiary basis togrant such a temporary variation must be compelling.
f. The court must start with the aforementioned two-part material changein circumstances analysis.
g. But for a temporary variation, the court must also assess whether the changedcircumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests.
h. 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 tocontinue or exacerbate actual or potential physical and/or emotional harm for the child.
i. The court must be satisfied that the child’s best interests requirean immediate change – to reduce the detrimental impact of unacceptable negative dynamics or behaviours.
j. The court must be satisfied that the existing order has come tobe demonstrably contrary to the best interests of the child – and that the proposed temporary variation is urgently needed to shield the child from likely future harm.
k. Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair tothe child to delay implementation.
l. And given the qualitative difference between untested affidavit materials on a motioncompared 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.
m. On a temporary motion, the status quo will have a strong gravitational pull – until the moment when the court determines that a child is in peril. After that, priority switches torescuing and protecting the child. And the pace of correction is directly related to the magnitude of the child’s current exposure to harm.
Dambrot, J. sitting in Divisional Court in S.H. v. D.K., 2022 ONSC 1203 (Ont. Div. Ct.) as a modification of the threshold described by Pazaratz, J., at paragraph 40 concurred that the court must be satisfied “that circumstances exist of so compelling and exceptional nature that they require an immediate change”. However, he continued:
40 … I would only caution that there may be exceptional circumstances that justify a temporary variation of a final order other than those described in F.K. v. A.K. It will be recalled that Pazaratz J. insisted that a temporary variation of a final parenting order could only be made where the child’s physical and/or emotional well-being is in jeopardy and the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. That is certainly an indication of how exceptional the circumstances must be to make an interim variation of a final parenting order, but I would not foreclose the possibility that other, equally compelling circumstances might meet the test.
Dambrot, J. in S.H. v. D.K. supra, sent a cautionary note when the court is asked to overturn longstanding status quo on a temporary motion. Analytical rigor must be maintained. In overturning a decision that changed a final order on a temporary basis, Dambrot, J. wrote at paragraph 61:
I noted earlier the motion judge’s caveat on the stringent legal test in F.K. that cautioned against placing too much emphasis on maintaining the status quo may have led him into error. I am satisfied that it did. Having reviewed his reasons in detail, I am driven to the conclusion that he watered down the importance of maintaining the status quo on an interim motion, and that his approach runs directly contrary to what Benotto J. said in Davis v. Nusca, that “there is the basic principle of maintaining the status quo until trial which is extraordinarily important in family law cases.” The motion judge lost sight of the importance of maintaining the status quo until trial and conflated the requirement that there be compelling reasons to make an order on an interim basis with a determination of the best interests of the child. He gave the requirement of compelling reasons no real meaning and disturbed a long-standing parenting arrangement on an interim basis in the complete absence of urgent, exceptional or in any other sense compelling reasons. In effect, he gave final relief on an interim motion.
In Epshtein v. Verzberger-Epshtein, 2021 ONSC 7694 (CanLII), Kurz, J. set out that the proper text for an interim variation of a final parenting order requires:
a. A strong prima facieproof that there is a material change in circumstances regarding a parenting issue;
b. The parenting issue must be an important one;
c. The circumstances arising since the final order must be urgent or pressing; and
d. The moving party must then prove that the remedy sought is in the child’s best interests.”