The Court in this case outlined the test to be used for an interim variation of a final parenting order.

Background

This case was an appeal from an Order that was made on an interim motion which temporary varied the parenting schedule of the parties 13-year-old daughter.

The parties in this case were married in 2006, separated in 2013 and divorce thereafter. The parties had one child. In 2014, the parties entered into a Separation Agreement which was converted into a Final Order. The Separation Agreement stipulated that the parties could review the child’s residence scheduled on or after April 1, 2019, without having to prove that there had been a material change in circumstance. The current schedule had been in place for 7 years and consisted of the child having parenting time with the father on Tuesdays overnight and on alternating weekends from Friday to Monday morning.

On January 30, 2020, the mother brought an Application to obtain updated financial disclosure from the father, to review his child support obligations and to make minor adjustments to the parenting schedule as it pertained to school breaks and religious holidays. When the father served his Answer, he made a claim for joint decision-making authority and sought an Order varying the Final Order such that the parties would have a shared parenting arrangement. The father then brought a motion in April 2021 seeking a temporary order for a shared parenting arrangement. The motion judge found in favour of the father and granted him an interim equal parenting schedule. The mother sought leave to appeal this decision.

Analysis

On appeal, the mother argued that the motion judge erred in law by applying the incorrect legal test for an interim or temporary variation to a final order establishing a parenting schedule and by failing to give appropriate weight to maintaining the status quo.

The Divisional Court began by setting out the proper test for an interim variation of a final order. Section 16.1(1) of the Divorce Act states that a court may make a parenting order with respect to a child of the marriage. Section 16.1(2) allows a court to make an interim parenting order pending the determination of an application. Section 17(1) of the Divorce Act allows a judge to vary, rescind or suspend a parenting order, however, section 17(5) provides that an order under section 17(1) can only be made if the court first satisfied itself that there has been a change in circumstances.

The Divisional Court clearly set out the difference between a “review” and a “variation”. A review allows for the parties to alter an Order or Agreement without having to demonstrate a material change in circumstances whereas a variation does require that there has been a material change in circumstances.

In this case, the Divisional Court determined that while the father’s Answer was a review of parenting, the motion itself was for an interim variation and as such, it was subject to the material change requirement.

The Divisional Court then went on to outline the test for an interim variation. The onus rests with the party that is seeking the variation to establish that the existing order results in untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being and that the new proposed arrangement is so necessary and beneficial that it would be unfair to the child for there to be a delay in implementing the new arrangement.

The Divisional Court found that while the motion judge used the correct test, there was a caveat that he had which ultimately resulted in an error of law. This caveat was that the motion judge stated that the stringent test should not be read in a manner that places too much emphasis on maintaining the status quo. When providing his reasons, the motion judge made various findings about the child’s best interests before completing an analysis as to whether the father had met the stringent test for an interim variation of a final order. The Divisional Court decided that there had been an error of law because the motion judge reached his conclusion and then provided their reasons to support the conclusion that had already been reached.

Conclusion

The Divisional Court found that the father did not meet the stringent test for an interim variation of a Final Order as there was no evidence of “exceptional circumstances” that would justify the interim variation of the Order.

In finding that the motion judge had committed an error of law, the Divisional Court overturned the motion judge’s decision.

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