Change the Order — Not the Diapers!!
In Family Law, the pendulum sometimes swings.
Take the issue of time-sharing (as I now like to refer to it) between separated parents. Several years ago, a lawyer could safely predict that, absent special considerations or factors, the typical schedule for the “access” parent (i.e. the parent who did not have the child or children living with him or her) would include alternate weekends, a mid-week supper hour visit as well as a share of holidays. For infants and toddlers under 2 years of age, access would not include overnights. On the other hand, it might include shorter, more frequent periods.
Children of different ages or stages of development have different needs and abilities when it comes to spending extended periods of time away from the home of their main residential parent.
This kind of “alternate weekends and one-evening-a-week” schedule still appears in a number of court decisions and even in privately-negotiated separation agreements. However the pendulum does swing occasionally: our Courts have been more willing to change and even expand the time sharing in appropriate cases. More and more, we have two working parents whose work schedules may not comprise the Monday to Friday 9 to 5 work week. Or, where one parent is more involved in a particular extracurricular activity (eg. Dad is coach of the child’s soccer team), access time may be tailored to games and practises. Fathers in particular have been more vocal in seeking additional time beyond weekends that begin on a Friday night (or Saturday morning) and end on a Sunday evening. Some courts will extend the Sunday night to a Monday morning at school and in doing so, eliminate the possibility of Sunday night conflict between the parents. Sometimes, two weekday supper hour visits are ordered.
More recently, there appears to be a strong push by some — often the father, in my experience– for “equal time”, whether on a “2 day-2 day- 3 day” basis or a “week about” schedule. They argue “what could be fairer than the child spending equal time in the care of each parent?”. Some court decisions order equal time sharing however still the most will award to one parent the majority of time with the child. It is hard to predict. Our overriding principle in family law is the child’s “best interests”, although each of the parties to a dispute over custody or access to children will have their own viewpoint as to what those best interests are. Evidence from third party sources, including social work professionals is often helpful to our courts in determining what those best interests are.
I had not intended this blog to be about custody, access and time-sharing. (That topic alone could fill several pages.) However a recent decision by the Ontario Court of Appeal concerns me. Court of Appeal decisions are very important as they serve as important precedent for lower courts and can also influence negotiations when there is no court proceeding.
In family law, there is a special proceeding known as a variation proceeding (or Motion to Vary) when a party seeks to change a previous permanent court order. There can be a whole host of reasons for bringing variation proceedings including changes in financial circumstances that necessitate changes in support orders. Or, for example, one or both parents may be seeking changes in existing custody or time-sharing arrangements due to job changes, moves, what they claim to be the children’s own wishes or other circumstances. The list is endless.
What happens when a child who was only five when the original order was made, has now turned 9? Suppose that the previous order provided for access to a father every other weekend through to Monday morning and also a Wednesday overnight every week. At age 9, does the child’s “advancing maturity” by itself justify spending more time with the access parent?
In the Court of Appeal decision,1 the father of nine-year old D. sought expansion of a similar schedule to an equal time arrangement. The previous court order was made when D. was five years old and was of the alternate weekend and mid-week visit type. The father claimed that D. being older and more mature, would benefit from such a schedule. He also argued that other changes had occurred, namely that the mother had remarried, she had two other children to care for and D. had been diagnosed with a learning disability. He felt that equal time would mean less change for D. between households and eliminate any conflict about extracurricular activities. Generally the mother and father got along well with one another and neither was critical of the other’s parenting abilities.
The variation trial was heard by a judge of the Ontario Superior Court, who decided that there was no reason to change the present order. The father appealed.
The Court of Appeal upheld the decision. They relied heavily on a decision of our highest Court (the Supreme Court of Canada)2 to set out the legal test for variation of a previous order. In short, there must be a “material change in circumstances” that has occurred since the original order.3 That material change must have “altered the child’s needs or the ability of the parents to meet those needs in a fundamental way”. The change must be one that could not have been foreseen or could not have been reasonably contemplated at the time of the original order.
In variation proceedings, the “onus” is on the party seeking the change to prove this.
The Court of Appeal agreed with the trial judge’s findings. The trial judge found that D. was a “happy, well-adjusted, caring child who is thriving … his needs are being met on an ongoing basis”. The fact that he was now older and more mature did not in itself constitute a material change. There was no third party evidence (as could have been obtained if the Office of the Children’s Lawyer had been part of the proceeding) to suggest that D.’s needs were not being met that, in turn, could lead to the finding that his increased age and maturity were materialchanges. Neither the remarriage of the mother, the expansion of the mother’s family nor the diagnosis of a learning disability met the test of material change either.
This decision strikes me as rather restrictive. Maybe it was the lack of third party expert evidence however do we really need to get a social worker’s opinion as to whether an extra day or two to an access parent will meet the child’s present “needs”? Needs are not quite the same as best interests. A child may not necessarily “need” to spend extra time with dad …. but would the child benefit from that extra time even if the present schedule appears to be working well for the child?
Factual situations often influence the decision. In this case, the father already had fairly liberal time with D., including alternate weekends that extended overnight to Monday morning and a weekday overnight. There is nothing to suggest one way or another that equal time is beneficial or that even “more” time with one parent is necessarily beneficial to the child. In his case, he did not produce any evidence from a social worker, psychologist or other professional to show such benefit, even if such evidence were to exist. There is in fact a lack of research as to the long term survival and success rate of equal time-sharing arrangements.
But what about for example settlements or court orders for very young children? If, chiefly as a result of his or her age, a two-year old just out of diapers is staying overnight only on Saturday (but not on either Friday or Sunday) and the arrangement seems to be working well for the child, what hurdles will the father have to obtain any expansion as the child gets progressively older? What about an infant who spends the daytime with the access parent but not overnight? When will that expand to full overnights and multiple days in a row?
With rare exceptions, settlements and court orders do not plan for or phase in varying and changing time-sharing schedules as children get older.
The case suggests to me that a parent and his or her lawyer must be very careful when crafting a settlement agreement to ensure that a child’s advancing age may be included in the factors to be taken into account in determining whether there has been a material change in circumstances.4
So long as the pendulum keeps swinging.
 Brown v Lloyd. Legal citation is 2015 ONCA 46.
 that decision is known as Gordon v Goertz, a decision of the Supreme Court of Canada. Legal citation is  2 S.C.R. 27.
 “material” suggests a high standard of importance and significance. Not every change that occurs in the life of a child or a parent is “material” for the purposes of variation.
 I am also grateful to lawyer Marta Siemiarczuk who first brought this case and her commentary to my attention in her article “Time to reform rules for reviewing parenting regimes” in the Law Times of April 13, 2015.