In order to obtain an Order varying decision-making authority or parenting time, you must prove that there has been a material change in circumstances. The pieces of legislation that govern parenting are the Divorce Act and the Children’s Law Reform Act (CLRA). While each piece of legislation contains different wording, courts have affirmed that the test, and factors the court considers, remain the same whether you are married or common-law spouses.
The change that occurred must be material, and must have also affected, or be likely to affect the best interests of the child. The change must also be one that was not foreseen at the time the initial order or variation was made. You cannot use a motion to change as an avenue to appeal the initial decision.
After a judge finds there has been a material change that warrants revisiting the Order, they will consider the best interests of the child in light of the new information and make a new Order. The new Order may be a significant change from the existing one, or the judge may find that the existing Order still meets the needs of the child.
What constitutes a Material Change?
There is no specific list of what may or may not qualify as a material change. The change may be to one or both parents, or the child(ren) themselves.
The Divorce Act does explicitly state that a former spouse’s terminal illness or critical condition shall constitute a material change in circumstances of the child of the marriage, and will be considered while determining the child’s best interests. The legislation does not list any other specific changes.
One situation that can be a material change is relocating for a new job. In some situations, conflict between parents can be a material change, as can their conduct.