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Motions to Change and Material Change in Circumstances - The passage of time is just not enough to prompt a change in residential time.

Brown v. Lloyd was a motion by the dad to change the previous final order so as to increase his already liberal access time with his then 9 year old son to equal parenting time. The Ontario Court of Appeal dismissed dad's appeal from the trial decision (five day trial) that had dismissed his motion for equal time. The appellate court reminds us that even before you can get to first base, you have to establish a "material change in circumstances".  

I can't help but wonder if part of the motivation behind the trial judge's decision and the appellate court's unwillingness to expand dad's access time stemmed from the repeated attempts (previously successful) by dad to expand his time. The first order with respect to the lad was made when he was not yet three years old. Thereafter, three additional orders were made, each time expanding dad's time. With the ink barely dry on the fourth order, dad continued to seek changes in the residential schedule that led to the five day trial.

Before you can have a court entertain any change in the residential schedule, you need to establish the following:

(1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

A number of the grounds that dad raised were already known when the previous order had been made. The dad raised an additional ground: "the passage of time and Dax's growing maturity". The appellate court agreed with the trial judge who had held that:

Dax's increase in age and maturity did not "automatically" constitute a material change in circumstances. She [the judge who heard the motion to change at a trial] went on to observe that there was no evidence before her that Dax's needs were not being met. In our view, this and similar statements by the motion judge merely reflect her evaluation whether Dax's needs or circumstances, or his parents' ability to meet his needs, had been altered in a fundamental way so as to materially affect Dax.

In other words, just because a child gets older, that does not in and of itself constitute in law a material change in circumstances that would justify a change in the residential schedule.  If you want to trend towards equal parenting as the child grows older, do not assume that a court will even entertain your motion to change absent a material change in circumstances.

What can we take from this decision and the current state of the law? When negotiating a residential regime, particularly with reference to very young children, you need to be mindful of writing into the agreement (or court order) that as the child matures, it will be appropriate to expand the non-custodial parent's time. Do not assume that the mere passage of time will provide you with legal grounds to seek an expansion of residential time with your child.

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