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Old 11-07-2006, 11:41 AM
Taylor Taylor is offline
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Default Material change

What qualifies as a 'material change'? I am aware that this is needed to change a custody order, but am not sure just what kind of things would qualify. Any help on this would be appreciated.

Old 11-07-2006, 03:37 PM
Decent Dad Decent Dad is offline
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You could google on "material change custody order" and find some answers there...

I assume it can be a number of things: time, age of child, agreement, re-location, etc. or even a case for PAS or similar.

At the end of the day it is a crap-shoot to re-open a custody and access motion.

Do you have more specifics?
Old 11-07-2006, 09:25 PM
logicalvelocity logicalvelocity is offline
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to vary a custody regime on motion, a person must first prove on a balance of probabilities that a material change of circumstance has occurred in the ongoing best interest of the child. Once this is proven, the court will hold a custody adjudication of the child by applying the best interest test. Variance's of orders is regulated by section 29 of the Children's Law Reform Act, which can be found here.

29. (1) A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29.

Some examples of a material change of circumstance are:

If one parent moves or is planning a future move with the child;

if someone new moves into the home;

a persons ability to parent the child declines due to health or illness or conduct;

a custodial parent consistently disregards court orders for access or with holds information from the other parent bearing on the child's health, welfare or education;

a custodial parent does not provide medications etc for when the child is in the other parent's care.

These are just some examples of case law

Laurin v. Martin, 2005 CanLII 37970 (ON C.A.)

The court held that a material change of circumstances was prevailing due to the father's adverse relationship with the school had impacted adversely on the child. Evidence to support this conclusion was the unusually high number of absences from school and lateness for school while the child was in the father’s custody. The court further held on the basis of these two factors and the school reports that the child’s academic performance/achievement was impaired. The court subsequently identified a number of breaches by the father of the provisions of a consent order and concluded a material change of circumstance that necessitated a change in the custodial arrangement of the child.

Layzell v. Layzell, 1997 CanLII 479 (ON C.A.)

The Appeal court affirmed that a material change of circumstance occurred in regards to the best interest of the children. The Respondent in the matter absconded the children to Switzerland, in violation of an existing custody and access order. Once the material change threshold was met, the court held a fresh custody adjudication in regards to the children by applying the best interest test.

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