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While courts have discretion to vary a final parenting order, judges will be cautious before ordering a variation on an interim basis. The court process that assessed evidence and produced a final order is presumed to be in a child’s best interests, so there must be a material change in circumstances and compelling reasons to change the status quo. Courts must find that an existing order jeopardizes a child’s well-being and that an immediate change is necessary. While this is a high threshold, there are alternative options that can address children’s needs. Counselling and other interventions aimed at a child’s welfare can respond to immediate needs while providing stability.
Father Seeks Interim Change to a Final Parenting Order
In P.S. v. T.O., the father brought an urgent motion wishing to change a final parenting order on an interim basis. Specifically, he sought sole decision-making responsibility for the child’s education and health, authority to change the child’s school, or to have the child remain in her current school but reside primarily with him, as well as the appointment of the Office of the Children’s Lawyer. The mother opposed the changes but agreed to the Office of the Children’s Lawyer’s involvement.
The proceedings arose when the father found inappropriate images on the child’s phone, along with concerns about the child’s interactions with peers at school, and her safety and emotional well-being. The parties did not agree on the seriousness of the incident or on the appropriate response. After a further incident, the father felt that the events, along with the parties’ failure to agree on how to address the child’s well-being, constituted a material change in circumstances.
The judge first noted that a request to change a final parenting order is governed by section 29 of the Children’s Law Reform Act. That section requires the court to find that there has been a material change in circumstances that affects or is likely to affect the best interests of the child since the order was made. In Gordon v. Goertz, the Supreme Court of Canada established a two-step test. The first step requires the requesting party to establish that there has been a material change in circumstances affecting the child’s best interests. And at the second step, if a material change in circumstances is found to exist, the court undertakes a new inquiry into the best interests of the child.
The Existing Order Must Be Intolerable
Justice Daudlin noted that when a party seeks a temporary change to a final parenting order, courts undertake a more stringent analysis. This is because judges must be cautious “changing an arrangement to which a child has become accustomed, especially where that arrangement has been determined by court order, which is presumed to be correct”. There is additional concern if the final order is to be changed on a temporary basis.
In Crawford v. Dixon, the judge reviewed prior cases which concluded that courts have discretion to make an interim variation of a final order. However, the judge cautioned that this should not be routine, but could be justified where there is compelling evidence and if the need for the variation is urgent. As the judge noted in F.K. v. A.K., if courts 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”.
Beyond the two‑stage material‑change analysis, judges must undertake additional review when a temporary variation is sought. As outlined in F.K. v. A.K., courts also need to determine if the changed circumstances have created a situation of actual or potential harm, danger, or prejudice for the child, which is of a magnitude that immediate intervention is required to safeguard the child’s best interests. The judge further explained that the party seeking the variation must demonstrate that the existing order results in an untenable or intolerable situation, which jeopardizes the child’s physical or emotional well-being. And that delay in addressing the problem is likely to continue or exacerbate the harm for the child.
Additionally, due to the nature of the order being sought, the court also needs to find that an immediate change is necessary to protect the child, and that the existing order is contrary to the child’s best interests, and that the proposed variation is beneficial and that it would be unfair to the child to delay its implementation. Overall, the court must find on a balance of probabilities that there is a clear and compelling need for an immediate change.
Judges are Cautious Changing Orders Children Have Become Accustomed To
In Southorn v. Ree, the judge explained that evidence at a trial that resulted in a final determination had the advantage of being tested during cross-examination. But evidence at a motion is presented through affidavits, and judges often offer conflicting explanations, which makes it difficult to assess the parties’ credibility. Further, when the variation being sought would change parenting, an additional consideration emerges that justifies a stringent legal test. Courts recognize that temporary orders can create a new status quo that can be difficult to alter.
Justice Daudlin acknowledged that, in the background to this case, there was a high level of parental conflict, which had become a risk factor for the child. And at times the parents had “responded to the child’s needs through the lens of their conflict with one another, rather than through coordinated, child‑centred problem‑solving that would permit timely and effective decision‑making”. The mother specifically alleged that the father had a pattern of conduct, including harassing, intrusive, and controlling communications that undermined their co-parenting and led to communication breakdowns. In turn, the father claimed that the mother was not engaged in addressing his safety concerns and did not acknowledge his role as a parent.
The judge found it clear that the parties’ conflict had interfered with their ability to communicate and jointly arrange timely support for their child. It was for this reason that, at the case conference, the court had already found a need for child-focused assistance and requested the involvement of the Office of the Children’s Lawyer. While it was clear the child was experiencing difficulty and needed support, it was also true that the child had been drawn into the parents’ conflict.
Courts May Find Alternative Child-Focused Solutions
Looking at the legal framework, the issue was not whether the child needed assistance, but whether the father met his burden of showing that a temporary variation of the final order was justified. And on this, the judge was not convinced that the evidence showed circumstances had arisen that required interim changes to decision‑making, schooling, or the child’s primary residence. As Justice Daudlin noted, the evidence was contested, and the events occurred recently, yet the court was being asked to make interim orders that would disrupt the child’s living arrangements.
Overall, the judge was not persuaded, based solely on affidavit evidence, that the existing orders had become untenable and that the proposed steps were necessary to protect the child from imminent harm. Instead, some of the child’s needs were already being addressed. The parties had consented to the involvement of a counsellor, and there was a request to the Office of the Children’s Lawyer to provide independent and child-focused assistance in light of the parties’ ongoing conflict. The judge felt these would address the child’s immediate needs while preserving the child’s routine and stability.
While the father had genuine concern, his request went beyond what was necessary at the current time. Instead, it was necessary to allow the counselling to proceed. The judge also had some reminders for the parents, explaining that the child needed consistent, child-focused parenting rather than further conflict. This included reducing her exposure to adult conflict, consistent safety expectations across both households, and respectful communication.
Need to Modify a Parenting Order in Ontario? Contact Johnson Miller Family Lawyers in Windsor-Essex County
Changing a final parenting order, especially on an interim basis, is one of the most legally complex and high-threshold processes in Ontario family law. As highlighted in recent case law, courts require clear, compelling evidence of a material change in circumstances and an urgent need to protect a child’s well-being before intervening in an established arrangement.
If you are considering seeking (or responding to) a variation of a parenting order, experienced legal advice is critical. The family law team at Johnson Miller Family Lawyers assist parents across Toronto and the Greater Toronto Area with urgent motions, parenting disputes, decision-making responsibility, and child-focused litigation strategies. Contact us online or call 519-973-1500 to discuss your situation and understand your options.
