• by David Tobin
Originally published in the OFLM 2023-11 edition
This article highlights the current test which must be met if a party is to successfully vary a temporary parenting order.
While case law suggests two different tests, there is much to be gained by synthesizing them and demonstrating to the court that since the making of the previous temporary parenting order, there has been a material change in circumstances, reasonably affecting the best interests of the child, and there is compelling reason that the temporary parenting order ought to be changed.
A high bar exists for those who seek to revisit a temporary parenting order prior to trial. The policy reasons behind the difficulty in varying temporary parenting order are 1) children have a need for stability, so multiple changes are not ideal; and, 2) children are well served by an expeditious resolution of family law matters, and so proceedings that delay or lengthen proceedings will not be in children’s best interests.
Temporary orders are regarded as “a reasonably acceptable solution to a difficult problem until trial.” As such, there is a heavy onus on a party who seeks to vary a temporary order “essentially replacing one imperfect solution with another imperfect solution pending trial.” (EN v SN, 2023 ONSC 4480).
Counsel must pay attention to whether the temporary parenting order which is being varied was made under the Divorce Act or the Children’s Law Reform Act (“CLRA”). Justice Finlayson in B.R.M. v. M.A.E.M. (2021 ONSC 2791) noted that the CLRA and the Divorce Act contain different statutory language about variations of interim orders, although the applicable legal principles in the case law decided under either piece of legislation are not necessarily different.
Section 29 of the CLRA provides that a court shall not make an order varying an order in respect of custody or access unless there has been a material change of circumstances that affects or is likely to affect the best interests of the child.
There is some dispute as to the source of the jurisdiction to vary temporary parenting orders under the Divorce Act. Some cases note that the jurisdiction is found in section 17, wherein it states a “…court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively … (b) a parenting order...” However, other courts note that in the Divorce Act a “parenting order" means an order made under subsection 16.1(1), i.e. not an interim order as set out in subsection 16.1(2).
Whether or not section 17 can ground the request to vary a temporary order, there is no dispute that the Superior Court of Justice has the jurisdiction to vary a temporary parenting order made pursuant to the Divorce Act. As Justice Gautier held in Lagrandeur v. Lagrandeur (2017 ONSC 6967), “[t]he case law has consistently recognized that courts have jurisdiction to vary interim orders, even if the relevant statute is silent as to that issue.”
Whether under the Divorce Act or the CLRA, there are two general judicial approaches to motions to vary temporary parenting orders. The first line of cases requires that there is a material change in circumstances, reasonably affecting the best interests of the child. This is a threshold question, and if it is found that there has been a material change, the judge must then conduct a “fresh inquiry” into the best interests of the child. This appears to be the favoured, current approach, and has also been articulated as a material change compelling a change in the best interests of the child (Radojevic v. Radojevic, 2020 ONSC 5868) To be clear, it is not just a reassessment of the child’s best interests: A material change must be found before a best interests inquiry can be conducted.
The second approach requires that there is a compelling reason that the temporary parenting order ought to be changed. This “compelling reason” must be directly related to the best interests of the child. (Calabrese v Calabrese, 2016 ONSC 3077)
The two approaches are not dissimilar, both revolving around the best interests of the child. Much of the recent case law synthesizes the approaches, such that a party likely must demonstrate that there is a material change in circumstances, reasonably affecting the best interests of the child, and there is compelling reason that the temporary parenting order ought to be changed.
The law is clearly stated in Radojevic v. Radojevic (2020 ONSC 5868) and Miranda v. Miranda (2013 ONSC 4704 at para. 26). In Miranda, Justice Mitrow has the following to say:
A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (Ont. S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. Q.B.) at para 10. In Green v. Cairns, 2004 CarswellOnt 2322 (Ont. S.C.J.) at para. 14, Wood J. referred to the well-founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes "clearly and unequivocally" that the present arrangement is not in a child's best interests. In Greve v. Brighton, 2011 CarswellOnt 8814 (Ont. S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child's best interests. (emphasis added)
Justice Kaufman has described, in brief, the circumstances that are necessary as “extenuating,” and being those that are “material, substantially important or compelling.” (Lamacchia v Carullo, 2022 ONSC 687)
Another recent helpful articulation from Justice Kurz, drawing on many authorities, can be found in Thomas v. Wohleber (2022 ONSC 1258). The test was set out as follows:
Whether there has been a “change in the circumstances of the child” since the time of original order.
That change must be a material one; i.e. one that materially affects the child: Gordon v. Goertz, ,  S.C.J. No. 52 (S.C.C.), at para. . That means that the change must be “substantially important”: McIsaac v. Pye, , at para. ;
The order that those materially changed circumstances compel the court to make must meet the best interests of the child: Miranda v. Miranda, , at para. , Radojevic v Radojevic , ibid, Chyher v. Al Jaboury, , at para. , citing the previous decision in the same case at at para. , Greve v. Brighton, , at para .
While there are differing articulations of the test for bringing motions to vary an interim parenting order, in effect, they are not all that different. They emphasize that the focus is to be on the children, and the impact of a change or circumstance on the children, rather than the effect that they will have on the parents.
There is a high onus for litigants seeking to challenge or revisit temporary parenting orders. Maintaining the status quo is seen as being better for both parties and the court system as a whole: It provides children with stability and encourages parties to move toward the resolution of their matter. Such an approach also saves legal fees and court resources and is undoubtedly better for the mental health of the parties than constantly reopening orders that were intended to be interim.
It is clear that it is not in a child’s best interests to, as Justice Kurz put it in Radojevic, “leave it open to deep pocketed and litigious parents to continuously litigate without having to bother to go to trial.”