Court orders are enforceable and try to resolve family law issues giving some predictability to the parties. However, situations can change, and it may become necessary to change the arrangements that were put in place. This may require a variation, where one party asks the court to vary a prior order. In rare cases, the original order may have expressly provided for a review. This may be undertaken without the requesting party showing that there has been a material change in circumstances.
A Material Change is Needed Before Varying terms of a Court Order
Section 17 of the Divorce Act allows courts to vary, suspend, or rescind the provisions of a parenting order. However, section 17(5) states that “before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order.” Courts have considered this provision in the context of the jurisdiction to make review orders.
Courts Can Authorize a Review Without Showing a Material Change in Circumstances
In Cuthbert v. Nolis, the outcome of a 2018 trial gave the mother decision-making responsibility over the parties’ child while the respondent father had parenting time. However, the judge indicated that the respondent’s father should eventually have increased parenting time, which should reach 50/50. Consequently, he included a review term in the order that enabled the father to apply to increase parenting time if the parties could not work out a schedule. Since the parties could not agree on a schedule, the father motioned to increase his parenting time. The trial judge hearing the case awarded the father gradually increased parenting time.
The appellant argued that the trial judge erred by changing the 2018 final order when there was no material change in circumstances. However, while the earlier 2018 order was called a final order, it expressly allowed the respondent to apply to the court to change the parenting schedule without demonstrating a material change. The judge noted that while review terms in parenting orders are rare, courts have jurisdiction to impose them. It was also clear from the New Brunswick Court of Appeal decision in Sappier v. Francis that a party is not required to establish that there has been a material change in circumstances concerning an issue if the court authorized a review. In Fournier v. Fournier, the court explained that there is a “narrow exception to the requirement that a material change in circumstances be shown, where the court has authorized a ‘review’.” Importantly, the court added that any review is to be “narrowly construed and rarely ordered.”
Inclusion of a Review Term Not the Norm
Here, the Court of Appeal emphasized that including a review term in a parenting order is not often the case. In Leskun v. Leskun, the Supreme Court of Canada directed that as much as possible, courts should resolve the issues before them and make orders that are subject to change on proof of a material change in circumstances. However, when review terms are used, the Supreme Court indicated that they:
- Must be “justified by genuine and material uncertainty at the time of the original trial” when the order is being made; and
- Should be “tightly delimited” to the issues that are subject to review. Any “failure to tightly circumscribe the issue will inevitably be seen by one or other of the parties as an invitation simply to reargue their case.”
If the criteria are met for the court, review terms can be appropriate and avoid locking the parties into arrangements with uncertainty about when to return to court. In this case, the criteria were met. When making the original parenting decision, the trial judge was concerned that immediately changing the parenting schedule would cause too much anxiety to the parties’ child. At the time the order was granted, it was not clear what was causing the anxiety, but it was also recognized that the child’s anxiety improved with age, which made a review term reasonable.
Review Terms Coexist with the Variation Process
In M. (K.A.A.) v. M. (J.M.), the court considered the validity of review terms in the context of the process for variation of a court order. Looking at the Divorce Act, the court noted that section 17(5) sets out a procedure for a party to vary an order dealing with decision-making or parenting time. The issue was whether this general procedure excluded the possibility of including an additional procedure in order to reconsider the order in some circumstances. For the court, there was no reason why the process in 17(5) should exclude an additional procedure.
In this case, the order did not prevent either party from applying for a variation under s.17(5). It did, however, add a “fast-track” procedure to have parenting and decision-making re-considered if the father tried to alienate the child from the mother. In Sapier, the trigger for the review was the passage of time. Here, the court found that the triggering circumstance for a review could be a specified event, such as the father’s attempted alienation. The trial judge was concerned at this possibility and included an arrangement where the mother could bring the issue before him. This arrangement was to protect the best interests of the child, and although it did not conform to the procedure for variation in section 17(5), it did not need to. This was because section 16 of the Act granted broad discretion to make orders that ensure a child’s best interests are met.
Review Terms Can Help Courts Make Arrangements in a Child’s Best Interests
In Children and Family Services v. G.S., the appellant complained about the specific review clause and argued that the trial judge created an unreasonable clause. The trial judge found that the appellant’s mother tried to alienate the children from their father. Because of this, the judge was concerned about the mother’s contact with the children and restricted access to the children to enable a course of counselling pending trial.
The judge’s order provided that the matter would be reviewed in order to determine what contact between the mother and the children would be appropriate and in the children’s best interests. There was concern that the mother had been involved in a lengthy attempt to alienate the children from their father. The order provided that the review would occur on thirty days’ notice by either parent.
On review, it was clear that the trial judge accepted that the children were adversely affected by the mother’s actions and crafted a remedial order to have the children’s best interests protected. Justice Gray explained that courts need the ability “to craft a sensible remedial order that responds to the particular violation of substantive rights that has occurred, and that allows the Court to rectify the matter in a reasonable way.” The trial judge was concerned about a repeat of the mother’s conduct which would harm the children, and consequently was cautious about locking the family into an arrangement for the mother’s contact with the children before being in a position to decide what the appropriate should be. In this case, the order responded to the trial judge’s concerns, and the review allowed the issue to be revisited within a reasonable time.
A Court Order Must Specifically Authorize a Review
Court orders dealing with parenting matters can include terms enabling a review without requiring a material change in circumstances. This enables courts to implement arrangements in the children’s best interests quickly. However, the order must specifically authorize a review.
Contact the Windsor Divorce Lawyers at Johnson Miller Family Lawyers for Trusted Advice on Parenting-Time Arrangements
Family dynamics can change quickly, and parenting arrangements must also change to accommodate these paradigm shifts. In many cases, matters involving support payments and parenting arrangements can be contentious issues, which is why the compassionate family law lawyers at Johnson Miller Family Lawyers guide clients throughout the duration of their cases. From separation agreements and property division to parenting time and inheritance disputes, we will advise you on how the law applies to your circumstances and help you make informed decisions at each step. To speak with one of our lawyers regarding your family law matter, call us at 519.973.1500 or online.