Child Custody and Changing Custody and Access
Ideally, once there is a court-ordered custody and access agreement, no further changes will need to be made. In reality, circumstances are always evolving and parents may have legitimate reasons for changing custody and access arrangements.
What are some reasons for changing child custody and access arrangements?
1. Changes to your child’s living arrangements
2. New medical needs of your child
3. New educational needs of your child
4. Relocation of parents
How do I change my child custody and access arrangements?
If a divorce has already been obtained, the Divorce Act applies to custody arrangements. Before a court makes a variation in respect of a custody order, the court will need to be satisfied that there has been a change in the condition, means, needs or other circumstances of the child since the initial order or last variation. In deciding whether to vary a custody order, a court will emphasize the principle of maximum contact. Essentially, a child should have as much contact with each parent as is consistent with the best interest of the child.
In other circumstances, where divorced parents seek an access variation, where parents have not obtained a divorce or are not cohabiting but have a child together, the Children’s Law Reform Act applies. A court will not make an order in respect of custody or access unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.
To establish a material change, a judge must be satisfied that there has been a change in the condition, means, needs, or circumstances of the child or in the ability of the parents to meet the needs of the child. This change must materially affect the child and be a change that was either not foreseen or could not have been reasonably considered by the judge who made the initial order. If the courts find a material change in the circumstances, a judge will begin an inquiry into the best interest of the child.
What steps should I take?
First, talk to the other parent. If both parents can agree on new details of the arrangement, the process will be much smoother. Both parents must understand the agreement, the agreement must be fair, and the agreement must take into account the best interest of the child.
If you and your former spouse are in agreement about the custody and/or access changes, a Consent Motion to Change will need to be filed to the appropriate court.
What if my former spouse/partner and I cannot agree?
If parents cannot agree on the custody and/or access changes proposed, the parent wishing to make changes will need to file a Motion to Change to the appropriate court.
Before going to court, consider alternative dispute resolution processes that could allow you and your former spouse to come to an agreement. Mediation sessions, for example, can be more economic, convenient and lead to a faster resolution.
Going to Court
A judge will base their decision on the best interest of the child. This test considers the following factors:
· The child’s well-being;
· Permanence and stability of the family unit;
· Respective merits of the applicants as providers of guidance and education;
· The child’s relationship with each spouse; and
· What arrangements already exist, the status quo.
If the child’s living arrangement is working well, the court may be hesitant to make any changes. Changes to custody and access decisions involve an exercise of discretion with case by case considerations.
If you are looking for more information, do not hesitate to contact us and our Family Law Lawyers can discuss your matter in more detail over a free consultation. You can reach our office at 905-366-0202 or contact us through our website here