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Family - Change of Order. Cuthbert v. Nolis
In Cuthbert v. Nolis (Ont CA, 2023) the Court of Appeal noted that (even) a parenting order may be changed where the order itself expressly anticipates such, despite the absence of a 'material change in circumstances':(i) Respondent was not required to demonstrate a material change in circumstances
[10] The 2018 order – despite being styled a final order – expressly permitted the respondent to apply for a change to the parenting schedule. It in no way required him to demonstrate a material change in circumstances. As Myers J. noted in his procedural endorsement dated August 15, 2019, “[t]he order is a final order but Justice Goldstein made it clear that the process could occur without a material change”. That is, Goldstein J. put in place a process to gradually implement what he determined was in the children’s best interests: an eventual 50/50 parenting time arrangement.
[11] While a review term in a final parenting time order is relatively rare, it is well-established that courts have jurisdiction to impose them: M. (K.A.A.) v. M. (J.M.), 2005 NLCA 64, 259 D.L.R. (4th) 344, at paras. 25-36. Neither party is required to establish a material change in circumstances with respect to an issue on which the court has authorized a review: Sappier v. Francis, 2004 NBCA 70, 246 D.L.R. (4th) 482, at para. 9. Contrary to the appellant’s submissions, s. 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 does not impose an absolute requirement that a material change be shown in every case where a party seeks to vary a final order. As the Ontario Superior Court held in Fournier v. Fournier, 2020 ONSC 606, at paras. 84-85, “there is a narrow exception to the requirement that a material change in circumstances be shown, where the court has authorized a ‘review’”, which must be “narrowly construed and rarely ordered”. More recently, in Y.M.S. v. R.O.S., 2021 ONSC 6684, at para. 70, Doi J. held that a “review term under [a] parenting time provision in [a] Final Order creates a rare and narrow exception to the usual requirement that a material change in circumstances be shown to vary a parenting order”.
[12] Again, review terms in final parenting time orders are not the norm. As the Supreme Court has directed, “[i]nsofar as possible, courts should resolve the controversies before them and make an order which is permanent subject only to change … on proof of a [material] change of circumstances”: Leskun v. Leskun, 2006 SCC 25, 268 D.L.R. (4th) 577, at para. 39. Courts have recognized that it is generally in the best interests of children to provide them “with stability in their lives following family breakdown” by incorporating “some sense of finality into child-care arrangements”: M. (K.A.A.), at para. 26. For this reason, review terms are seldom ordered and must be 1) justified by genuine and material uncertainty at the time the original order is made, and 2) tightly delimited with respect to the issue or issues that will be subject to review: Leskun, at paras. 37-39; Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, at para. 65.
[13] Provided these criteria are met, review terms allow a court to avoid “[locking] the parties and the children into an access arrangement” where “[t]he situation continues to unfold in real time” and where the trial judge is not in a position to finally determine the appropriate parenting arrangements: Children and Family Services v. G.S., 2011 ONSC 1732, 279 O.A.C. 296, at para. 92. Put differently, a court-ordered review “removes the need for an aggrieved parent to ‘guesstimate’ when things have reached the point that he or she must return the matter to court”: M. (K.A.A.), at para. 26.
[14] I therefore accept that, in some circumstances, a review term may be appropriate but should be limited to situations where the parties’, or children’s, circumstances were uncertain at the time the original order was made. This is such a case. At the time of the 2018 order it was unclear what was causing G’s anxiety, nor was the extent of it well understood. While the fact a child is aging will never, on its own, amount to a material change in circumstances, when the 2018 order was made Goldstein J. found that “[G’s] anxiety seems to have improved with age” which, in my view, made a review term reasonable.
[15] In any event, I would not interfere with the trial judge’s conclusion that, even though not required in this case, there had been a material change in circumstances. This finding was rooted in and amply supported by the fact that G’s anxiety had “improved sufficiently” from 2018 until the order under appeal, and that it was “no worse when he is with [the respondent] than with [the appellant]”. The trial judge carefully reviewed evidence relating to G’s anxiety from multiple sources, including G’s counsellor, G’s schoolteachers, and the s. 112 report from the Office of the Children’s Lawyer (“OCL”). His factual findings are reasonable and entitled to deference. . Unoh v. Agboola
In Unoh v. Agboola (Div Court, 2023) the Divisional Court considers a 'motion to change', which seems to be essentially a motion to vary an earlier order:[41] Relying on Hawkins v. Schlosser, 2013 ONSC 2120, at paragraph 17 and Lapier v. Roebuck, 2017 ONSC 1640, at paragraph 49, the mother submits that the father’s motion to change cannot proceed where there is an outstanding appeal.
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