Changing A Temp Order

In laymen's terms, some people refer to this as a Motion To Change (MTC), or Appealing a temp order. A MTC is for final orders, and while you can go the route of appealing a temp order, it's "not really a thing". But, the threshold for changing a temp order (otherwise known as an interim order) is very similar to the usual MTC, so that term is often used, which we will do here as well. In reality it's just an interim motion like any other, but if it's aimed at changing an earlier interim order (or sometimes a final order temporarily), we just call it a MTC for convenience; but it does not use the same paperwork as a usual MTC.

For the purposes of this blog entry, we're going to talk about MTC an interim parenting order (be it access or decision making).

In additional the Material Change threshold test that goes with the usual MTC, there's a higher degree of scrutiny because you are generally looking at untested evidence, and run the risk of flip flopping things for a child inducing instability, which they don't like to do. The test has been cited many times, and broken down in a clear analysis for all to understand, but it was done so again most recently in Kumurdjieva v. Cerasuolo, 2023 ONSC 6687 (CanLII) which cites F.K. v. A.K., 2020 ONSC 3726 (CanLII), which in turn cites the original Supreme Court of Canada case law on the matter Gordon v. Goertz 1996 CanLII 191 (SCC).

Use these steps to determine your chances of success, in particular, read the Kumurdjieva v. Cerasuolo here. I say that because once you read this case law, you'll see how hard it is.

To determine a request to change custody, access or parenting order, the court must embark upon a two-stage inquiry (I've taken a lot of this verbatim from decisions):

The First Step

There must be a material change in circumstances since the last order was made. 

1. There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.

2. The change must materially affect the child.

3. It must be a change which 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.

4. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order. 

5. If there is no material change in circumstances, the inquiry ends.  The court would be without jurisdiction to vary the order.  Litman v. Sherman,  2008 ONCA 485(Ont. C.A.).

6. If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order.

The second step: 

1. If a material change in circumstances has been established the court then embarks on a fresh inquiry into the best interests of the child.

2. 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-Persaud 2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.

3. 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 to the extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young 2003 CanLII 3320 (Ont. CA).

4. The child should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz; Rigillio v Rigillio 2019 ONCA 548 (Ont. CA).

5. Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. Gordon v. Goertz.

Now if you are trying to do a temporary change to a final order, there is even a more stringent test because in all instances, courts must exercise caution before changing an existing arrangement which children have become used to.

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 to be correct. Montgomery v. Montgomery 1992 CanLII 8642 (ON CA); Gordon v. Gordon 2015 ONSC 4468 (SCJ); Oickle v. Beland 2012 ONCJ 778 (OCJ).

And the level of required caution is further heightened if the court is being asked to change 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.

But the evidentiary basis to grant such a temporary variation must be compelling.

The court must start with the aforementioned two-part material change in circumstances analysis. 

1. But for a temporary variation, the court must also assess whether the changed circumstances 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.

2. 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.

3. The court must be satisfied that the child’s best interests require an immediate change – to reduce the detrimental impact of unacceptable negative dynamics or behaviours. 

4. The court must be satisfied that the existing order has come to be 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.

5. 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 to the child to delay implementation.

6. And 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.

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 to rescuing 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. (Emphasis added).

Not that the point needs to be driven home and harder, but this comes up time and time again how high that bar is. in Miranda v. Miranda, 2013 ONSC 4704 (CanLII), respected Justice Mitrow did a good job highlighting the fact there is a lot of caselaw supporting the high bar:

[26] 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 (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. C.Q.B.) at para. 10.  In Green v. Green, 2004 CarswellOnt 2322 (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 ONSC 4996 (CanLII), 2011 CarswellOnt 8814 (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.

The bottom line is not only must the circumstances warrant the change, but you have to be skilled in presenting the arguments to draw the Court to that conclusion.